STATE OF NEW JERSEY v. GEORGE GASTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0554-06T40554-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE GASTON, a/k/a GIGI GASTON,

MARK JOHNSON, GEORGE MORGAN, MARK

MORGAN, GEORGE M. GASTON, and

GEORGE MORGAN GASTON,

Defendant-Appellant.

________________________________

 

Submitted October 16, 2008 - Decided:

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey Law Division, Criminal Part, Camden County, Indictment No. 00-04-1180.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Teresa M. Garvey, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant George Gaston appeals the denial of his petition for post-conviction relief (PCR). We affirm.

Gaston was indicted in April 2000 on the following charges:

first-degree armed robbery, N.J.S.A. 2C:15-1 (count 1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count 2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-49(a) (count 3); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count 4); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count 5); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count 6).

After moving unsuccessfully to dismiss the indictment, Gaston entered a plea of guilty to first-degree armed robbery, with the understanding that the State would recommend a sentence of twelve years incarceration, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. He was also to receive shorter, concurrent sentences arising out of two other indictments.

Gaston attempted to change the factual basis of the plea at his sentencing on March 30, 2001. Although he stated that he was not seeking to withdraw his plea, he was seeking to alter the length of his term of incarceration. The sentencing judge examined Gaston under oath. He refused the request to alter the plea, having found that there was a factual basis for the plea. After analyzing the aggravating and mitigating factors, the judge imposed the sentence contemplated by the plea agreement.

Gaston appealed and the matter was heard before an Excessive Sentence Oral Argument (ESOA) panel in February 2003. He argued that there was no factual basis for the plea to armed robbery, and that the sentencing court should have held a hearing with respect to whether the gun was real. The ESOA panel affirmed. Gaston did not seek certification from the Supreme Court.

On August 7, 2003, Gaston filed his PCR petition. Counsel was appointed to represent him shortly thereafter. In February 2006, assigned counsel advised the trial court of a disagreement with Gaston over the matters to be raised at the PCR hearing. The trial court declined to interview Gaston on the record at that time, but directed counsel to file a brief prepared by counsel, Gaston, or both. Assigned counsel subsequently filed a brief prepared by Gaston.

The PCR hearing took place on July 28, 2006, before Judge John T. McNeill, III, who permitted Gaston to address the court directly. Judge McNeill then reviewed Gaston's legal arguments and denied his petition. This appeal followed.

Gaston raises the following issues on appeal:

POINT 1: THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

POINT 2: THE MATTER SHOULD BE REMANDED WITH AN ORDER DIRECTING ASSINGED COUNSEL TO SUBMIT A BRIEF ON DEFENDANT'S BEHALF.

We note that the appellate brief was filed by designated counsel on behalf of the Office of the Public Defender.

Having reviewed the record and considered the points raised on appeal, we conclude that they are without merit and affirm essentially for the reasons set forth in Judge McNeill's comprehensive oral opinion. R. 2:11-3(e)(2).

We add only that we concur with Judge McNeill's conclusion that Gaston had the option to reject the advice of his appointed attorney and present his own brief in support of his PCR petition. See R. 3:22-6 ("Counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit."); State v. Rue, 175 N.J. 1, 18-19 (2002).

Affirmed.

(continued)

(continued)

4

A-0554-06T4

November 6, 2008